Lewis v. Bruton

STONE, J. — We do not think section 2131 of the Code of 1816 exerts any influence in this case, except to the extent that it declares all contracts based on a gambling consideration to be void. The second clause of the section has reference to suits between the parties making the wager. It sheds no new light on the question of the stakeholder’s liability. The rule is general, both in England and in this country, that when a wager is made, and the stakes are deposited with a stakeholder, either party may, at any time before the result is ascertained, and the money paid over to the winner, withdraw from [320] tlie illegal transaction, notify the stakeholder, and demand and recover nis deposit-money. Such is the general rule, and it has been long so settled in this State. — Shackleford v. Ward, 3 Ala. 37; Ivey v. Pfifer, 11 Ala. 535; Davis v. Orme, 36 Ala. 540; Hawley v. Bibb, 69 Ala. 52; 1 Whart. on Contr. § 452; 2 Pars, on Contr. 626; Collamer v. Day, 2 Verm. 144; Tarleton v. Baker, 18 Verm. 9; McKee v. Manice, 11 Cush. 357; Love v. Harvey, 114 Mass. 80; Fisher v. Hildreth, 117 Mass. 558; Morgan v. Beaumont, 121 Mass. 7. -This rule is not universal. Whar. on Contr. § 452. In the present case, the stakeholder, Lewis, paid the money to the supposed winner, before he was notified by his adversary not to pay it over. It does not seem to be disputed that Bruton did give Lewis notice not to pay the money over to Jones, the alleged winner. The contention is, that the payment was made after the result of the election was generally known, and publicly proclaimed. Members of Congress are elected the first Tuesday after the first Monday in November. — Code of 1876, § 248. On the Saturday next after the election (an interval of four days), the probate judge and other named officers, as supervisors, are required “ to make a correct statement, from the returns of the votes from the several precincts of the county, of the whole number of votes given therein for each office, and the person to whom such votes were given.” — Code of 1876, § 291. A certified statement of the vote cast in the county, as required above to be made by the supervisors, is to be forwarded by the probate judge to the Seeretaiy. of State, immediately, and on the same day (Saturday) the service is performed. — Code, § 292. “ It shall be the duty of the Secretary of State, within ten days after receiving the returns of election from the probate judges of each county, to furnish, from a count of the actual vote cast, as the same appears by the returns certified to him, certificates of election to such persons as may be ascertained to be elected to any office in this State.” — Code, § 294. It is thus shown .that the certificate of election may not, in fact, be issued by the Secretary of State, until sixteen or more days have elapsed, after the election has been held. Considering the many duties of the same kind, cast on the Secretary of State at the same time ,and the uncertain time necessary for the various county returns to reach the Secretary of State, it is not reasonable to suppose the certificates of election will be made out in much less than ten, possibly fifteen days, after the day of election. In the present record, there is an absence of proof when the certificate Of election was issued — uncertainty as to the time when the money was paid by the stakeholder to the supposed winner, and when the notice was given by Bruton to him, not [321] to pay over the money to Jones. The reasonable inference from the testimony is, that both the payment and the notice not to pay preceded the issue of the certificate of election. The decision of these questions, however, is rendered unnecessary, as no ruling appears to have been made upon them. The charges asked and refused all ignore these questions, and claim a verdict for defendant, in the absence of’such certificate, if the money was in fact paid before notice not to pay, and after the result of the election was “ publicly announced.” The certificate afterwards issued, it is contended, related back to the election, and cured the irregularity. We can not assent to this. A payment before certificate of election issued, is at the peril of the stakeholder; and if the authority to pay be revoked, or the payment countermanded, before the actual issue of the certificate, an action for money had and received lies against the stakeholder. The Circuit Court did not err in refusing the charges asked. Whether there was a sufficient revocation in this case, we do not consider, as the question is not raised. Patterson v. Clark, 126 Mass. 531. We do not propose, in this case, to consider which of the opposing candidates was in fact elected. We'are, in no sense, assuming to make ourselves judges of the election. As we understand the law, that question was not, and, at the time the money must have been paid over, could not have been raised. We take it for granted, if the certificate of election had been issued before notice was given to the stakeholder not to pay, the charges asked would have been rested on that hypothesis, and not on the weaker one, that the result had been “ publicly ' announced.” In fact, we presume the Circuit Court did correctly rule on all questions not excepted to, and thus brought before us. If the money had been paid over, and the result of the election officially declared by the Secretary of State, before notice to the stakeholder not to pay, we are not prepared to say this would not be a complete bar to the action, even though the money was paid before the result was officially ascertained. Such official ascertainment might heal the irregularity of premature payment, and close the door against any demand after-wards made. In what we have said, we have confined our rulings to what is known as the officially proclaimed result. We have not considered the question of the contested seat, which is public, official history, of which we take judicial notice. If necessary, we would probably hold the stalre-holder would be justified in paying over the money on the official announcement, without waiting for the uncertain result of an election contest. The demurrer to the first count of the complaint was rightly overruled. Payment to the alleged winner, before notice not [322] to pay, was defensive matter, the averment and proof of which rested with the defendant. The deposit being for an illegal purpose, the depositor had till the last moment to withdraw from the transaction, by revoking the authority to pay. Affirmed.